2009 Wisconsin Act 94

a. The Indian juvenile is 12 years of age or over and objects to the transfer.

b. The evidence or testimony necessary to decide the case cannot be presented in tribal court without undue hardship to the parties or the witnesses and that the tribal court is unable to mitigate the hardship by making arrangements to receive the evidence or testimony by use of telephone or live audiovisual means, by hearing the evidence or testimony at a location that is convenient to the parties and witnesses, or by use of other means permissible under the tribal court's rules of evidence.

c. The Indian juvenile's tribe received notice of the proceeding under sub. (4) (a), the tribe has not indicated to the court in writing that the tribe is monitoring the proceeding and may request a transfer at a later date, the petition for transfer is filed by the tribe, and the petition for transfer is filed more than 6 months after the tribe received notice of the proceeding.

(d) Declination of jurisdiction. If the court assigned to exercise jurisdiction under this chapter determines that the petitioner in an Indian juvenile custody proceeding has improperly removed the Indian juvenile from the custody of his or her parent or Indian custodian or has improperly retained custody of the Indian juvenile after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and immediately return the Indian juvenile to the custody of the parent or Indian custodian, unless the court determines that returning the Indian juvenile to his or her parent or Indian custodian would subject the Indian juvenile to substantial and immediate danger or the threat of that danger.

(e) Intervention. An Indian juvenile's Indian custodian or tribe may intervene at any point in an Indian juvenile custody proceeding under this chapter.

(f) Full faith and credit. The state shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe that are applicable to an Indian juvenile custody proceeding to the same extent that the state gives full faith and credit to the public acts, records, and judicial proceedings of any other governmental entity.

(4) Court proceedings. (a) Notice. In any involuntary proceeding under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of a juvenile whom the court knows or has reason to know is an Indian juvenile, the party seeking the out-of-home care placement shall, for the first hearing of the proceeding, notify the Indian juvenile's parent, Indian custodian, and tribe, by registered mail, return receipt requested, of the pending proceeding and of their right to intervene in the proceeding and shall file the return receipt with the court. Notice of subsequent hearings in a proceeding shall be in writing and may be given by mail, personal delivery, or facsimile transmission, but not by electronic mail. If the identity or location of the Indian juvenile's parent, Indian custodian, or tribe cannot be determined, that notice shall be given to the U.S. secretary of the interior in like manner. The first hearing in the proceeding may not be held until at least 10 days after receipt of the notice by the parent, Indian custodian, and tribe or until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for that hearing.

(b) Appointment of counsel. Whenever an Indian juvenile is the subject of a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian juvenile from the home of his or her parent or Indian custodian or the placement of the Indian juvenile in an out-of-home care placement, the Indian juvenile's parent or Indian custodian shall have the right to be represented by court-appointed counsel as provided in s. 938.23 (2g). The court may also, in its discretion, appoint counsel for the Indian juvenile under s. 938.23 (1m) or (3) if the court finds that the appointment is in the best interests of the Indian juvenile.

(c) Examination of reports and other documents. Each party to a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of an Indian juvenile shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to the out-of-home care placement may be based.

(d) Out-of-home care placement; serious damage and active efforts. The court may not order an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) to be removed from the home of the Indian juvenile's parent or Indian custodian and placed in an out-of-home care placement unless all of the following occur:

1. The court finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (e), that continued custody of the Indian juvenile by the parent or Indian custodian is likely to result in serious emotional or physical damage to the juvenile.

2. The court finds by clear and convincing evidence that active efforts, as described in par. (f) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian juvenile's family and that those efforts have proved unsuccessful. The court shall make that finding notwithstanding that a circumstance specified in s. 938.355 (2d) (b) 1. to 4. applies.

(e) Qualified expert witness; order of preference. 1. Any party to a proceeding under s. 938.13 (4), (6), (6m), or (7) involving the out-of-home placement of an Indian juvenile may call a qualified expert witness. Subject to subd. 2., a qualified expert witness shall be chosen in the following order of preference:

a. A member of the Indian juvenile's tribe described in sub. (2) (d) 1.

b. A member of another tribe described in sub. (2) (d) 2.

c. A professional person described in sub. (2) (d) 3.

d. A layperson described in sub. (2) (d) 4.

2. A qualified expert witness from a lower order of preference may be chosen only if the party calling the qualified expert witness shows that it has made a diligent effort to secure the attendance of a qualified expert witness from a higher order of preference. A qualified expert witness from a lower order of preference may not be chosen solely because a qualified expert witness from a higher order of preference is able to participate in the Indian juvenile custody proceeding only by telephone or live audiovisual means as prescribed in s. 807.13 (2). The fact that a qualified expert witness called by one party is from a lower order of preference under subd. 1. than a qualified expert witness called by another party may not be the sole consideration in weighing the testimony and opinions of the qualified expert witnesses. In weighing the testimony of all witnesses, the court shall consider as paramount the best interests of the Indian juvenile as provided in s. 938.01 (3). The court shall determine the qualifications of a qualified expert witness as provided in ch. 907.

(f) Active efforts standard. 1. The court may not order an Indian juvenile to be removed from the home of the Indian juvenile's parent or Indian custodian and placed in an out-of-home care placement unless the evidence of active efforts under par. (d) 2. shows that there has been an ongoing, vigorous, and concerted level of case work and that the active efforts were made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian juvenile's tribe and that utilizes the available resources of the Indian juvenile's tribe, tribal and other Indian child welfare agencies, extended family members of the Indian juvenile, other individual Indian caregivers, and other culturally appropriate service providers. The court's consideration of whether active efforts were made under par. (d) 2. shall include whether all of the following activities were conducted:

a. Representatives designated by the Indian juvenile's tribe with substantial knowledge of the prevailing social and cultural standards and child-rearing practices within the tribal community were requested to evaluate the circumstances of the Indian juvenile's family and to assist in developing a case plan that uses the resources of the tribe and of the Indian community, including traditional and customary support, actions, and services, to address those circumstances.

am. A comprehensive assessment of the situation of the Indian juvenile's family was completed, including a determination of the likelihood of protecting the Indian juvenile's health, safety, and welfare effectively in the Indian juvenile's home.

b. Representatives of the Indian juvenile's tribe were identified, notified, and invited to participate in all aspects of the Indian juvenile custody proceeding at the earliest possible point in the proceeding and their advice was actively solicited throughout the proceeding.

c. Extended family members of the Indian juvenile, including extended family members who were identified by the Indian juvenile's tribe or parents, were notified and consulted with to identify and provide family structure and support for the Indian juvenile, to assure cultural connections, and to serve as placement resources for the Indian juvenile.

d. Arrangements were made to provide natural and unsupervised family interaction in the most natural setting that can ensure the Indian juvenile's safety, as appropriate to the goals of the Indian juvenile's permanency plan, including arrangements for transportation and other assistance to enable family members to participate in that interaction.

e. All available family preservation strategies were offered or employed and the involvement of the Indian juvenile's tribe was requested to identify those strategies and to ensure that those strategies are culturally appropriate to the Indian juvenile's tribe.

f. Community resources offering housing, financial, and transportation assistance and in-home support services, in-home intensive treatment services, community support services, and specialized services for members of the Indian juvenile's family with special needs were identified, information about those resources was provided to the Indian juvenile's family, and the Indian juvenile's family was actively assisted or offered active assistance in accessing those resources.

g. Monitoring of client progress and client participation in services was provided.

h. A consideration of alternative ways of addressing the needs of the Indian juvenile's family was provided, if services did not exist or if existing services were not available to the family.

2. If any of the activities specified in subd. 1. a. to h. were not conducted, the person seeking the out-of-home care placement shall submit documentation to the court explaining why the activity was not conducted.

(5) Invalidation of action. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is the subject of an out-of-home care placement, any parent or Indian custodian from whose custody that Indian juvenile was removed, or the Indian juvenile's tribe may move the court to invalidate that out-of-home care placement on the grounds that the out-of-home care placement was made in violation of 25 USC 1911 or 1912. If the court finds that those grounds exist, the court shall invalidate the out-of-home care placement.

(6) Placement of Indian juvenile. (a) Out-of-home care placement; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is placed in an out-of-home care placement shall be placed in the least restrictive setting that most approximates a family, that meets the Indian juvenile's special needs, if any, and that is within reasonable proximity to the Indian juvenile's home, taking into account those special needs. Subject to pars. (b) to (d), in placing such an Indian juvenile in an out-of-home care placement, preference shall be given, in the absence of good cause, as described in par. (d), to the contrary, to a placement in one of the following, in the order of preference listed:

1. The home of an extended family member of the Indian juvenile.

2. A foster home or treatment foster home licensed, approved, or specified by the Indian juvenile's tribe.

3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.

4. A group home or residential care center for children and youth approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the needs of the Indian juvenile.

(am) Temporary physical custody; preferences. Any Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is being held in temporary physical custody under s. 938.205 (1) shall be placed in compliance with par. (a) or, if applicable, par. (b), unless the person responsible for determining the placement finds good cause, as described in par. (d), for departing from the order of placement preference under par. (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under par. (a) or, if applicable, par. (b).

(b) Tribal or personal preferences. In placing an Indian juvenile under par. (a) or (am), if the Indian juvenile's tribe has established, by resolution, an order of preference that is different from the order specified in par. (a), the order of preference established by that tribe shall be followed, in the absence of good cause, as described in par. (d), to the contrary, so long as the placement is the least restrictive setting appropriate for the Indian juvenile's needs as specified in par. (a). When appropriate, the preference of the Indian juvenile or parent shall be considered, and, when a parent who has consented to the placement evidences a desire for anonymity, that desire shall be given weight, in determining the placement.

(c) Social and cultural standards. The standards to be applied in meeting the placement preference requirements of this subsection shall be the prevailing social and cultural standards of the Indian community in which the Indian juvenile's parents or extended family members reside or with which the Indian juvenile's parents or extended family members maintain social and cultural ties.

(d) Good cause. 1. Whether there is good cause to depart from the order of placement preference under par. (a) or (b) shall be determined based on any one or more of the following considerations:

a. When appropriate, the request of the Indian juvenile's parent or, if the Indian juvenile is of sufficient age and developmental level to make an informed decision, the Indian juvenile, unless the request is made for the purpose of avoiding the application of this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963.

b. Any extraordinary physical, mental, or emotional health needs of the Indian juvenile requiring highly specialized treatment services as established by the testimony of an expert witness, including a qualified expert witness. The length of time that an Indian juvenile has been in a placement does not, in itself, constitute an extraordinary emotional health need.

c. The unavailability of a suitable placement for the Indian juvenile after diligent efforts have been made to place the Indian juvenile in the order of preference under par. (a) or (b).

2. The burden of establishing good cause to depart from the order of placement preference under par. (a) or (b) shall be on the party requesting that departure.

(e) Report of placement. A county department or a child welfare agency shall maintain a record of each out-of-home care placement made of an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7), evidencing the efforts made to comply with the placement preference requirements specified in this subsection, and shall make that record available at any time on the request of the U.S. secretary of the interior or the Indian juvenile's tribe.

(7) Removal from out-of-home care placement. If an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) is removed from an out-of-home care placement for the purpose of placing the Indian juvenile in another out-of-home care placement, a preadoptive placement, as defined in s. 48.028 (2) (f), or an adoptive placement, as defined in s. 48.028 (2) (a), the placement shall be made in accordance with this section and s. 48.028. Removal of such an Indian juvenile from an out-of-home care placement for the purpose of returning the Indian juvenile to the home of the parent or Indian custodian from whose custody the Indian juvenile was originally removed is not subject to this section.

(8) Higher state or federal standard applicable. The federal Indian Child Welfare Act, 25 USC 1901 to 1963, supersedes this chapter in any Indian juvenile custody proceeding governed by that act, except that in any case in which this chapter provides a higher standard of protection for the rights of an Indian juvenile's parent or Indian custodian than the rights provided under that act, the court shall apply the standard under this chapter.

94,258 Section 258. 938.028 (2) (c) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is amended to read:

938.028 (2) (c) "Out-of-home care placement" means the removal of an Indian juvenile from the home of his or her parent or Indian custodian for temporary placement in a foster home, treatment foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the juvenile returned upon demand. "Out-of-home care placement" does not include holding an Indian juvenile in custody under ss. 938.19 to 938.21.

94,259 Section 259. 938.028 (6) (a) 2. and 3. of the statutes, as affected by 2009 Wisconsin Act .... (this act), are amended to read:

938.028 (6) (a) 2. A foster home or treatment foster home licensed, approved, or specified by the Indian juvenile's tribe.

3. An Indian foster home or treatment foster home licensed or approved by the department, a county department, or a child welfare agency.

94,260 Section 260. 938.13 (intro.) of the statutes is amended to read:

938.13 Jurisdiction over juveniles alleged to be in need of protection or services. (intro.) The Except as provided in s. 938.028 (3), the court has exclusive original jurisdiction over a juvenile alleged to be in need of protection or services which can be ordered by the court if any of the following conditions applies:

94,261 Section 261. 938.15 of the statutes is amended to read:

938.15 Jurisdiction of other courts to determine legal custody. Nothing Except as provided in s. 938.028 (3), nothing in this chapter deprives another court of the right to determine the legal custody of a juvenile by habeas corpus or to determine the legal custody or guardianship of a juvenile if the legal custody or guardianship is incidental to the determination of an action pending in that court. But Except as provided in s. 938.028 (3), the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 48 is paramount in all cases involving juveniles alleged to come within the provisions of ss. 938.12 to 938.14.

94,262 Section 262. 938.185 (4) (title) of the statutes is amended to read:

938.185 (4) (title) American Indian juveniles.

94,263 Section 263. 938.185 (4) (intro.) of the statutes is amended to read:

938.185 (4) (intro.) Venue for a proceeding under s. 938.12 or 938.13 (12) based on an allegation that an American Indian juvenile has committed a delinquent act may not be in the county specified in sub. (1) (a), unless that county is specified in sub. (1) (b) or (c), if all of the following circumstances apply:

94,264 Section 264. 938.185 (4) (a) of the statutes is amended to read:

938.185 (4) (a) At the time of the alleged delinquent act the juvenile was under an order of a tribe's tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

94,265 Section 265. 938.185 (4) (b) of the statutes is amended to read:

938.185 (4) (b) At the time of the alleged delinquent act the juvenile was physically outside the boundaries of that tribe's the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under par. (a), including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

94,266 Section 266. 938.19 (2) of the statutes is amended to read:

938.19 (2) Notification of parent, guardian, legal custodian, Indian custodian. When a juvenile is taken into physical custody under this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian, and legal custodian, and Indian custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian, and legal custodian, and Indian custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under s. 938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian, and legal custodian, and Indian custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian, and legal custodian, and Indian custodian of the juvenile are notified.

94,267 Section 267. 938.20 (2) (ag) of the statutes is amended to read:

938.20 (2) (ag) Except as provided in pars. (b) to (g), a person taking a juvenile into custody shall make every effort to release the juvenile immediately to the juvenile's parent, guardian or, legal custodian , or Indian custodian.

94,268 Section 268. 938.20 (2) (b) of the statutes is amended to read:

938.20 (2) (b) If the juvenile's parent, guardian or, legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, the person who took the juvenile into custody may release the juvenile to a responsible adult after counseling or warning the juvenile as may be appropriate.

94,269 Section 269. 938.20 (3) of the statutes is amended to read:

938.20 (3) Notification to parent, guardian, legal custodian, Indian custodian of release. If the juvenile is released under sub. (2) (b) to (d) or (g), the person who took the juvenile into custody shall immediately notify the juvenile's parent, guardian, and legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under s. 938.067 (2). The person who took the juvenile into custody shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give a copy of the statement to the intake worker and to any juvenile 10 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

94,270 Section 270. 938.20 (7) (c) 1. of the statutes is amended to read:

938.20 (7) (c) 1. To a parent, guardian, or legal custodian, or Indian custodian, or to a responsible adult if the parent, guardian, or legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, counseling or warning the juvenile as may be appropriate; or, if the juvenile is 15 years of age or older, without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

94,271 Section 271. 938.20 (7) (d) of the statutes is amended to read:

938.20 (7) (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile's parent, guardian and, legal custodian , and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

94,272 Section 272. 938.20 (8) (a) of the statutes is amended to read:

938.20 (8) (a) If a juvenile is held in custody, the intake worker shall notify the juvenile's parent, guardian, and legal custodian, and Indian custodian of the reasons for holding the juvenile in custody and of the juvenile's whereabouts unless there is reason to believe that notice would present imminent danger to the juvenile. The parent, guardian, and legal custodian, and Indian custodian shall also be notified of the time and place of the detention hearing required under s. 938.21, the nature and possible consequences of the hearing, and the right to present and cross-examine witnesses at the hearing, and, in the case of a parent or Indian custodian of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), the right to counsel under s. 938.028 (4) (b). If the parent, guardian, or legal custodian, or Indian custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible.

94,273 Section 273. 938.207 (1g) of the statutes is created to read:

938.207 (1g) Indian juvenile; placement preferences. An Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is held in physical custody under s. 938.205 (1) shall be placed in compliance with s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the person responsible for determining the placement finds good cause, as described in s. 938.028 (6) (d), for departing from the order of placement preference under s. 938.028 (6) (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b).

94,274 Section 274. 938.21 (2) (title) of the statutes is amended to read:

938.21 (2) (title) Proceedings concerning runaway or delinquent juveniles.

94,275 Section 275. 938.21 (2) (ag) of the statutes is amended to read:

938.21 (2) (ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.12 or 938.13 (7) or (12) or (14) shall be conducted according to this subsection.

94,276 Section 276. 938.21 (3) (ag) of the statutes is amended to read:

938.21 (3) (ag) Proceedings concerning a juvenile who comes within the jurisdiction of the court under s. 938.13 (4), (6), (6m), or (14) (7) shall be conducted according to this subsection.

94,277 Section 277. 938.21 (3) (am) of the statutes is amended to read:

938.21 (3) (am) The parent, guardian, or legal custodian, or Indian custodian may waive his or her right to participate in the hearing under this section. After any waiver, a rehearing shall be granted at the request of the parent, guardian, legal custodian, Indian custodian, or any other interested party for good cause shown.

94,278 Section 278. 938.21 (3) (b) of the statutes is amended to read:

938.21 (3) (b) If present at the hearing, a copy of the petition or request shall be given to the parent, guardian, or legal custodian, or Indian custodian, and to the juvenile if he or she is 12 years of age or older, before the hearing begins. Prior notice of the hearing shall be given to the juvenile's parent, guardian, and legal custodian , and Indian custodian and to the juvenile if he or she is 12 years of age or older under s. 938.20 (8).